by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON - Buoyed by re-election, President Obama is determined to make his mark on the federal judiciary after years of seeing nominees delayed or derailed by Senate Republicans.

To which those same Senate Republicans say: Good luck with that.

The latest battle in what has become a protracted war over federal judges focuses on 19 men and women whose nominations have been pending in the Senate for an average of eight months. Senate Republicans declined to confirm any of them during the presidential election. They say the nominations will see a similar fate in the lame-duck session of the outgoing Congress.

That hasn't stopped Obama from putting forward even more nominations in the wake of his re-election. Tuesday, he nominated three judges for the Eastern District of Pennsylvania, where six of 22 seats are vacant, including one that's been empty since June 2009. Nationwide, nearly one in 11 federal judgeships remain vacant, and some courts are struggling with caseloads.

"President Obama understands that judges are â?¦ a long-standing part of his legacy," says White House counsel Kathryn Ruemmler. "He's acutely aware of that."

The vacancies have the president's liberal allies up in arms - and not all their aggression is aimed at Republicans. The White House, they say, has not always fought hard enough to get Obama's nominees confirmed.

Obama's judges "will last long after he leaves office," says Nan Aron, president of the liberal Alliance for Justice. "We're pleased that the president is mindful about his judicial legacy."

The importance of the appeals and district courts is both numerical and strategic. While the Supreme Court handles about 80 cases a year, 55,000 cases are brought to the 13 circuit courts of appeals, and more than 300,000 are filed with district courts. The appeals courts form the "bench" from which most Supreme Court nominees are selected.

It's a bench that President George W. Bush filled with generally young, conservative nominees. To the consternation of his allies, Obama has favored slightly older, more moderate judges, prosecutors and U.S. attorneys. After nearly four years in office, he has yet to reverse Republican dominance at the appeals or district courts.

What Obama has done is make the federal judiciary much more diverse. Of the 158 judges who have won confirmation, 44% were women, 19% African Americans, 12% Hispanics and 7% Asian Americans - much higher percentages than his predecessors achieved. The White House sees the new level of female and minority judges as a base from which future presidents will feel compelled to build.

However, only 75% of his nominees have been confirmed, compared with 88% for Bush and 84% for Clinton. On average, they have waited 224 days in the pipeline, up from Bush's 176 days and Clinton's 98.

Democrats control the Senate with a 53-47 majority - increasing to 55-45 next year - but Republicans have continued to block action on judicial nominees. Republicans say it's just the natural rhythm of the Senate, where Democrats did the same thing when they were in the minority.

As for continuing the impasse during the lame-duck Congress? "It's because of Senate precedent," says Sen. Chuck Grassley, R-Iowa, top Republican on the Judiciary Committee. He blames an increase in judicial filibusters on Democrats who blocked several of Bush's nominees, beginning in 2002. "That kind of set a higher bar," he says.

The impasse is one reason why Senate Majority Leader Harry Reid, D-Nev., with Obama's backing, is trying to change the Senate's rules to speed up the process. GOP leader Mitch McConnell of Kentucky, who toyed with a similar move when he ran the Senate, has vowed to fight that effort.

Though most of Obama's nominees have won eventual confirmation, a few have met a brick wall in the Senate. Obama's nomination in 2010 of Goodwin Liu, who was then associate dean at the University of California-Berkeley School of Law, languished for 15 months before Republicans ultimately refused to grant him an up-or-down vote.

That stalemate pales compared with the fate of Caitlin Halligan, whose nomination to the U.S. Court of Appeals for the District of Columbia Circuit has been kicking around for two years. Twice blocked by Republicans, the general counsel for the Manhattan district attorney's office has not given up, and the White House continues to press for her confirmation.

Republicans considered those nominees too liberal - Halligan had argued as New York solicitor general that firearms manufacturers should be held civilly liable for crimes committed with guns, and Liu had written that interpreting the Constitution "requires adaptation of its broad principles to the conditions and challenges faced by successive generations."

Far less controversial appeals court nominees have been blocked despite enjoying bipartisan support. These include Robert Bacharach of Oklahoma and Bill Kayatta of Maine for seats on the 10th and 1st Circuit Courts of Appeals, respectively.

Armed with at least 41 votes, minority parties in the Senate long have used the filibuster to block people and policies they oppose. But these days, that policy seems to apply to anyone Obama nominates, says Caroline Fredrickson, president of the liberal American Constitution Society.

Nominees with bipartisan support are sure to get confirmed eventually, says Curt Levey, president of the conservative Committee for Justice. "Republicans are not in any hurry to make it happen, but at the end of the day, they're not going to stop non-controversial nominees," he says.

Liberal groups say Obama needs to go to the mat for his nominees, much as Presidents Bill Clinton and Bush did during their second terms. "You have to devote political capital to it," says Doug Kendall, president of the liberal Constitutional Accountability Center. Even White House allies such as John Podesta, Clinton's last White House chief of staff, say Obama failed to do that until now.

The White House signaled it means business two weeks ago by nominating eight judges at once, a week after the elections. "It was very intentional," Ruemmler says. "We wanted to do it right when the Senate came back."

Faced with a filibuster last January, Obama appointed Richard Cordray to lead the new Consumer Financial Protection Bureau while Congress was in recess, thereby installing him without Senate confirmation. That only hardened the GOP's stance against his judicial nominees.

"I wouldn't expect anything to change," says Ed Whelan, president of the conservative Ethics and Public Policy Center. "The conservative base is now mobilized on judicial nominations in a way that the liberal base has long been."